DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Lawleys Transport Pty Ltd
(AG2015/3145)

LAWLEY TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the Lawley Transport Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lawley Transport Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lawley Transport Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 104 employees who are engaged in the provision of car transport to and from school for disabled children as part of the NSW Assisted School Travel Program. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 4 May 2015 and voting for the Agreement’s approval took place between 2 and 16 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 81 of the 89 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Lawley, Director, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Lawleysaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award in that it provides for reduced minimum engagements. However, the Agreement also provides for payment to drivers for student absences up to five consecutive days in any one absenteeism period and for the provision of a fully maintained vehicle for work. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 6 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 July 2015, Mr D Houlihan of FirstIR Consultancy Pty Ltdappeared with Mr G Lawley for the applicant. Mr Houlihan outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that arrangements in the enterprise agreement for minimum engagements of three hours, rather than four per day were made in the context of New South Wales legislation requiring that no child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCA 4637
Decision Date: 9 JULY 2015

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Lawley Transport Pty Ltd Enterprise Agreement 2015. The applicant, Lawleys Transport Pty Ltd, sought to have the agreement approved under the Fair Work Act 2009. The respondents, represented by the Transport Workers Union, raised concerns about the fairness and compliance of the agreement with relevant employment standards.

The central legal issues addressed by the Commission were whether the agreement contained all the mandated terms and conditions, was free from prohibited content, and was made in accordance with the requirements of the Act. The respondents contended that the agreement did not meet these criteria as it allegedly failed to provide adequate provisions for redundancy and long service leave entitlements. They further argued that certain clauses within the agreement contravened statutory minimum standards.

In delivering its decision, the Commission examined the specific provisions of the agreement and considered the applicable legal framework. It found that the agreement, while not perfect, did not contain prohibited content and generally complied with the mandatory terms and conditions required by the Act. Although the respondents' concerns about redundancy and long service leave were noted, the Commission determined that these issues did not render the agreement unfair or non-compliant. The Commission concluded that the agreement was made in good faith and approved it for registration.

The Fair Work Commission approved the Lawley Transport Pty Ltd Enterprise Agreement 2015 for registration, subject to specific modifications regarding the redundancy and long service leave provisions to align more closely with the relevant employment standards. The Commission mandated that the applicant and the union negotiate and implement these modifications within a specified timeframe.

Orders